To: Senate Judiciary Committee
From: Christopher T. Dodson, Executive Director
Subject: HB 1425 — Enforcement of Foreign and Religious Laws
Date: March 22, 2017

The North Dakota Catholic Conference opposes HB 1425 because it unduly interferes with religious freedom and upends well-established law. To understand the bill’s problems, it helps to look at existing law and the bill’s language.

The American legal system has well-established principles regarding the application of religious legal systems. Put simply:

  • Courts will enforce contracts and other legal instruments that are secular on their face, even if they incorporate, in whole or in part, religious laws;
  • Courts will not enforce contracts or other legal instruments that require interpretation of religious doctrine; and
  • Courts will not enforce contracts or other legal instruments in a manner that violates the state or U.S. constitutions.(1)

This means that courts can enforce contracts and other legal instruments that are motivated by or an incorporate religious law. For example:

  • An employee and a business might negotiate a contract that gives a day off for a religious holiday.
  • A lender and a borrower may structure a financial transaction in a way that complies with religious law related to financing and insurance.
  • People may contract for binding arbitration of their agreements under religious law.
  • An employee’s contract might incorporate canon law.
  • A health care directive may require a health care decisions be made in accordance with a religious law.
  • Instructions for funerals and burials could require adherence to religious laws.

American courts can and do enforce these types of contracts. If, however, any of these legal instruments required the interpretation of religious law or violated the U.S. or state constitutions, the contract would not be enforceable.

Courts may also consider the law of foreign countries that apply religious law. In such cases they are not interpreting religious law. Instead, they merely identify what law would be applied by the courts of the foreign country. That law might be based on a religious law. This happens in the areas of tort law, such as when an American would sue a hotel in another country for an injury, or family law, such as when immigration law must determine whether a couple is legally married. Here again, the court cannot apply the foreign law if it violates rights under the state or U.S. constitutions.

Courts may also need to interpret religious laws in criminal prosecutions. Our own state supreme court, for example, held that interpretation of Catholic canon law was not only proper, but necessary, for prosecution of an embezzlement case. The court noted, of course, that the inquiry stops if it requires looking at religious doctrine.(2)

The committee should keep another legal principle to keep in mind when looking at HB 1425. Statutes that are generally applicable and neutral toward religion on their face can, constitutionally, substantially infringe upon religious freedom.(3) Unless the jurisdiction has accommodation laws — which North Dakota does not — employees and parties to a contract might seek application of religious law in their agreements to provide religious protections not afforded by the U.S. or state constitutions.

Supporters of House Bill 1425 may claim that it only restates existing law and that application of religious law like that described will not be affected. The North Dakota Supreme Court, however, holds that the legislature is presumed to not engage in idle acts.(4) In other words, courts must presume that HB 1425 is meant to change existing law. Moreover, a close reading of the bill indicates that it would, in fact, change existing law and prohibit enforcement of legal agreements.

The heart of the bill is the two sections on page 2, lines 3 through 21. At first glance, these sections appear to say that a court cannot enforce a religious law if doing so would violate one of the constitutional rights listed. That is not, however, what the sections say. What they actually say is that a court cannot enforce a religious or foreign law if any part of that law would violate one of those fundamental rights of American law, even if those parts of the foreign or religious law are not applicable to the legal question at issue.

As conservative journalist Matthew Schmitz wrote in the National Review about identical legislation in Kansas:

Sharia, of course, does not grant all the rights that the U.S. Constitution does; neither does Christian canon law or Jewish Halakhic law (or English or French law, for that matter). But why should this fact prevent a court from honoring a contract made under the provisions of one of these “foreign” legal systems if the contract does not itself violate any U.S. or state regulations, laws, or constitutional provisions? Under one reading of the Kansas law, a contract that makes reference to canon law or sharia — but is otherwise perfectly legal — would be thrown out, while an identical one that makes no such reference would be upheld.



We must assume that the bill is purposely written in this way because a decision that violated any of the constitutional rights listed would already be void under existing law. Any other interpretation of the sections would make them meaningless.(6) Remember, the presumption in North Dakota courts is that the legislature does not engage idle acts.(7)

Section 5 of the proposed law (page 2, line 29 - page 3, line 2) appears to give a right to contract despite the above-cited sections. However, this carve-out is limited in two respects. First, it only applies to legal entities, such as corporations. It does not allow individuals who contract with each other or with a legal entity, such as in an employee and corporate employer relationship, the freedom to contract in a manner that reflects their religious beliefs.(8) Second, it only applies when a legal entity chooses to subject itself to a foreign law “in a jurisdiction.” It does not apply to other types of foreign laws in the bill’s definitions, such as religious laws.

The next section of the bill states: “No court or arbitrator may interpret this section to limit the right of any person to the free exercise of religion as guaranteed by the first amendment to the United States Constitution and by the Constitution of North Dakota.” This may sound good until we remember that under the Smith decision a statute that is generally applicable — like HB 1425 — and is not discriminatory toward religion on its face — also like HB 1425 — is constitutional. In short, relying on religious protections in the constitutions fails to extend much in the way of religious protection.

That section also states that no court can adjudicate “ecclesiastical matters” if adjudication would violate the Establishment Clause of the U.S. Constitution or the North Dakota Constitution. “Ecclesiastical matters” is not defined except that it “includes” ministerial hiring and termination decisions. As to ministerial decisions, this provision means nothing. The U.S. Supreme Court ruled unanimously in
Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission that religious bodies have an absolute right to make such decisions regarding ministerial positions.(9) The second part of the sentence says that a court may not adjudicate a decision that requires interpretation of doctrine. This is already well-established law.(10)

What is important is what is left out of this section; namely, non-doctrinal matters, matters involving non-ministerial positions, and subjects that are not “ecclesiastical matters”. According to sections two and three of the bill those types of matters could never be enforced if the court found that any part of the referenced religious system did not give the same fundamental rights that are provided by the U.S. and North Dakota constitutions.

When we put all this together it is clear that HB 1425 interferes with the freedom to contract in a manner that an individual believes furthers their religious beliefs, like the examples listed at the beginning of this testimony.

My own employment contract with the North Dakota Catholic Conference incorporates Catholic canon law. I am a lay person. I might not hold a ministerial position.(11) I am not a legal entity. As already noted, Catholic canon law does not provide all the rights delineated under the U.S. and North Dakota constitutions. I chose, however, to exercise my freedom to contract and incorporate canon law in the agreement. Under existing law my rights under canon law and my employer’s rights under canon law can be enforced so long as they do not require courts to interpret religious doctrine and so long as they do not violate the U.S. or state constitutions. Under HB 1425, we could lose those rights. If that is not the intent of HB 1425, this bill is not needed.

House Bill 1425 could also interfere with a person’s right to make health care decisions. Under North Dakota law, these are legal documents. Health care directives often require that health care decisions be made for an incapacitated individual according to prescribed religious beliefs. Sometimes those directions involve doctrine. A court could not enforce those instructions.

Sometimes, however, they involve religious law that could be enforced. For example, it might say that a “Catholic priest of the Diocese of Bismarck” be consulted or that a Mormon with a “temple recommend” be in attendance. These may not be doctrinal questions, but they would require a court, if necessary, to apply religious laws, which was the wish of the individual who executed the directive.

Christians and Jews have long depended on the freedom to contract in a manner that reflects their religious beliefs. Well-established legal precedents have formed to respect that right. The same practice should apply to Sikhs, Hindus, Muslims, and everyone else. We should not distort our legal system and infringe upon the separation of powers because of unfounded fears that a foreign religious law will creep into our legal system.

Two interpretations of this bill are before you. Either this bill does nothing and is meaningless or this bill dangerously interferes with religious freedoms, the right to contract, criminal prosecutions, and the separation of powers. There is no middle ground.(12)

We urge a Do Not Pass recommendation.

1. North Dakota, like other jurisdictions, accepts these rules of law. See, e.g., State v. Burckhard, 1999 ND 64, 592 N.W.2d 523 (1999) and State v. Burckhard, 1998 ND 121, 579 N.W.2d 194 (1998).

2. Id.

3. Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).

4.
Chamley v. Khokha, 2007 ND 69, 730 N.W.2d 864 (2007).

5. Matthew Schmitz, “Fears of ‘Creeping Sharia;’” National Review Online, June 13, 2012, available at at http://www.nationalreview.com/article/302280.

6.
Douglas Laycock, perhaps the nation’s preeminent religious law scholar, came to the same conclusion. http://townhall.com/columnists/stevechapman/2012/06/10/the_bogus_threat_from_shariah_law

7. The section on page 4, lines 22-28, is also meaningless since this is already established law.

8.
American Laws for American Courts, which drafted the bill, expressly acknowledges on its website that this section purposely does not cover individuals. http://americanlawsforamericancourts.com/faqs/

9. 565 U.S. ___ (2012).

10.
Presbyterian Church v. Hull Church, 393 U.S. 440 (1969).

11. The Hosanna-Tabor decision left open what is a “ministerial” position.

12. Supporters of HB 1425 have claimed that the concerns of the North Dakota Catholic Conference are unprecedented. In fact, the state Catholic conferences of Florida, Michigan, New Hampshire, Kentucky, Georgia, Alaska, Arizona, Pennsylvania, Tennessee, and most recently Montana opposed similar legislation in their states. Moreover, the former president of the Canon Law Society of America testified against similar legislation in Pennsylvania.